Third Report of Session 2013-14 - European Scrutiny Committee Contents

16   Open data — re-use of public sector information



+ ADDs 1-2

COM(11) 877

Draft Directive amending Directive 2003/98/EC on re-use of public sector information

Legal baseArticle 114 TFEU; co-decision; QMV
DepartmentsCabinet Office and Justice
Basis of considerationMinister's letters of 28 March and 30 April 2013
Previous Committee ReportsHC 86-xvi (2012-13), chapter 5 (24 October 2012); HC 428-lii (2010-12), chapter 7 (29 February 2012)
Discussion in CouncilDate to be agreed
Committee's assessmentLegally important
Committee's decisionCleared


16.1  The proposal forms part of the EU 2020 strategy to promote growth in Europe's economies. The proposed Directive seeks to unlock the economic potential of public sector information through amending Directive 2003/98/EC on the re-use of public sector information (the PSI Directive), which established a minimum set of rules governing its re-use at European level. The Commission pointed to a lack of awareness and inconsistency of approach across Member States with respect to the 2003 Directive, which has hampered the creation of cross-border information products and services.

16.2  The key features of the proposal to amend the Directive are as follows:

  • to bring museums, libraries and archives (including university libraries) within scope of the Directive;
  • to establish the principle that generally accessible information should be made available for re-use;
  • to provide that charges for re-use should in general be limited to marginal costs, with some notable exceptions (such as museums, libraries and archives); and
  • to provide a redress mechanism for non-compliance through an independent authority with binding decisions.

16.3  The Commission's proposal was generally welcomed by the Government and is broadly in keeping with the Government's policy and innovation in the areas of re-use, open data and transparency. Many of the principles outlined in the proposal are already embedded within the open data and public sector information landscape in the UK.

16.4  The key issues that the UK wished to address during the course of the negotiations were as follows: the principles for making public sector information available for re-use; charging by public sector bodies within the scope of the Directive; the expansion of the scope to museums, libraries and archives (including university libraries); the role of the independent authority with regulatory powers; and the revised definition of public task.

16.5  We reported on the proposal in detail in February and October of last year.

The Minister's letter of 28 March 2013

16.6  The Parliamentary Under-Secretary of State for Justice (Helen Grant), writes to update us on the developments in the negotiation of this proposal.


16.7  The Trialogue negotiations involving the European Parliament (EP) began in December 2012, with the third Trialogue scheduled for the end of March. During the first Trialogue, the issues fell into three broad categories: first those where the EP and the Council's preliminary positions were identical and required no further discussion; second those where the EP and Council agreed in principle but needed to find common language and terminology; and third those cases where the EP and Council had diverging views. The first two categories of issues have been discussed and resolved. This included the resolution for the principles for making public sector information available for re-use and the revised definition of public task. For the third category the outstanding issues related to the role of an impartial review body (the "independent authority" in the original proposal), rules on charging and the rules on exclusive agreements. The Minister provides further detail on each of these issues.


16.8  The move towards making accessible information available for re-use is consistent with UK emerging policies on open data and transparency. The Government is satisfied that the latest text makes it clear that only accessible information falls within scope. The Directive therefore excludes information that is exempt under access legislation, and also information in which the intellectual property is owned by a third party. The latter is a key issue for archives, libraries and museums as these bodies hold significant quantities of content subject to third party rights.


16.9  The term "public task" is significant in the context of the PSI Directive because it defines whether certain information falls within the scope of the Directive. In negotiations, the UK argued against the definition being limited to what is established in law or other binding rules only, and for moves to remove common administrative practice from the definition. This is because the roles and responsibilities of many UK public sector bodies are not defined legally in this way. The UK has been successful in reinstating common administrative practice to the definition, with the possibility of review from an independent body other than the public sector body in question.


16.10  The question of charging has proved to be the most contentious and challenging aspect of the negotiations. Whilst the Government could accept that marginal cost pricing should be the default charging mechanism it was essential that sufficient flexibility was retained to ensure that charges could be made for re-use where appropriate. This was particularly the case for public sector bodies, such as government trading funds, which derive a substantial amount of their income from making their information and data available for re-use. The same applies to archives, libraries and museums. The Council, EP and Commission recognise and agree that such bodies should be able to charge above marginal costs and the text reflects this.

16.11  The UK has also argued strongly in favour of other public sector bodies being able to charge above marginal cost for specific activities or projects giving rise to public sector information where it is appropriate and necessary to do so. This applies in cases where the public sector body does not generate a substantial part of their overall revenue from public sector information but still needs to charge above marginal cost in order to make the information available for re-use. There may be further challenge on this particular exemption from marginal cost. This is the subject of discussions in the third trialogue. The Minister will update us on the outcome following these discussions.


16.12  The views of cultural sector bodies and representational groups have informed the UK negotiating position. The main issues have focussed on charging and the granting of exclusive rights, especially where the digitisation of cultural resources has been involved. The current text as agreed in Council meets the UK concerns satisfactorily around charging for museums, libraries and archives. Details regarding the duration of exclusive rights, particularly for digitisation of cultural resources, will be discussed at the third Trialogue. Several parties have called for a longer duration than the seven years in the text, including the UK.


16.13  The proposed amended Directive makes provision for Member States to establish an impartial review body that can consider complaints and forms of redress with binding decisions. The original proposal described this body as the "independent authority" but many Member States wished to avoid the unnecessary burden of establishing a separate body. Some Member States envisaged these activities being handled via a judicial process. The current text is open to the adoption of a proportionate regulatory model such as the one already in operation in the UK.


16.14  Subject to discussions in the final stages of negotiation it is anticipated that the Directive will go forward for the European Parliament plenary vote on 11 June. When the Government receives the final text of the proposal, the Minister will write again to update the Committee and seek clearance.

The Minister's letter of 30 April 2013

16.15  The Minister writes again, as promised, to update us on the draft text agreed between the EP and the Council, to highlight how the text meets the Government's aims for the negotiations, and to seek clearance from scrutiny. Subject to obtaining clearance, her aim would be for the Government to signal the UK's agreement to adoption of this text.


16.16  The compromise text retains the UK's flexible approach to charging and keeps within the spirit of the open data and transparency agenda. This is a crucial balance. The Directive establishes a principle of marginal cost as the general default for allowing re-use of public sector information. However, there are appropriate safeguards for trading funds and other public sector bodies that are required to generate a substantial part of their costs for the information. The Directive also recognises the need for a flexible approach on charging for archives, libraries and museums. 

16.17  Significantly, the text also enables other public sector bodies (for example, those that are not trading funds or cultural bodies) to be able to charge above marginal cost for the collection, production, reproduction and dissemination of public sector information, where appropriate, within a proportionate check and balance system. This system will reflect that operated at present for central government under Crown copyright management and the UK Government Licensing Framework. 


16.18  This is a key issue for museums, libraries (including university libraries) and archives, particularly in the context of digitisation projects.  The UK has been successful in negotiating and achieving the general ten year period for exclusive arrangements where necessary. Therefore organisations are permitted to enter into exclusive arrangements, for example, on costly digitisation projects, provided that the term of exclusivity does not exceed ten years.  


16.19  The Directive makes provisions for Members States to establish an "impartial review body" which can consider complaints and can make binding decisions. This change in wording from 'independent authority' is significant in that it avoids the unnecessary burden of establishing a separate body or moving away from the proportionate regulatory model already in operation in the UK.

16.20  The reference to the impartial review body's decisions being binding reflects the strong push from the Commission and other Member States to provide an enforcement mechanism. This will strengthen the right of re-users to seek to enforce a favourable decision of the review body. The outcome is a positive one for the UK in that the Government can adapt the existing regulatory framework without having to establish a new national competition authority or national judicial authority, to investigate complaints.


16.21  The Presidency asked the Committee of Permanent Representatives (COREPER) to signal their agreement to the final compromise text on 10 April 2013. The Directive is scheduled for a plenary vote in the European Parliament on 11 June 2013. As the Transport, Telecommunications and Energy Council meets 6-7 and 10 June 2013, the Directive is likely to go to another Council for adoption after the European Parliament plenary vote. It is as yet unclear which Council meeting this may be.


16.22  We thank the Minister for her two letters — both are excellent examples to other Departments of how to keep the Committee informed of developments in Trialogue negotiations before seeking clearance on the outcome.

16.23  We note the Government's success in negotiations and welcome, in particular, the outcome on charging, exclusive arrangements and a review body which will not require the establishment of a new institution.

16.24  We have no further questions to ask and now clear the proposal from scrutiny.

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Prepared 3 June 2013